Sanctioned: P2P lawyer fined $10,000 for “staggering chutzpah”

A federal judge has fined Texas lawyer Evan Stone $10,000 for sending out subpoenas and then settlement letters to people accused of sharing a German porn film called Der Gute Onkel—all without the judge's permission.

In September 2010, Stone brought suit on behalf of Mick Haig Productions against 670 accused file-swappers, and he asked permission to take early discovery. Judge David Godbey said no; instead, Godbey brought in the Electronic Frontier Foundation and Public Citizen to represent the interests of the Does, since none of them had yet been named and therefore had no counsel to speak for them. EFF and Public Citizen lawyers soon began hearing from people who said that Verizon had turned over their information to Stone, information generally obtainable only by subpoena.

The lawyers asked Judge Godbey to find out what was going on, and to sanction Stone if he had in fact issued subpoenas without the court's permission. Turns out that he had—at least four times. Godbey ruled (PDF) yesterday that Stone "grossly abused his subpoena power," obtained subscriber names he was not entitled to learn, and then, "almost unbelievably, Stone used the information he received to contact an unknown number of potential Does, presumably in the form of demand letters and settlement offers."

This wasn't even the first time Stone had run into subpoena problems. In a separate Texas lawsuit over anime, Stone sent a subpoena more than a month after the judge in that case withdrew permission to do so; even more shockingly, "Stone issued the subpoena on the same day that he voluntarily dismissed the underlying case," according to Godbey.

The judge's anger at Stone burns clearly throughout his order, especially when he sums up the entire situation:

To summarize the staggering chutzpah involved in this case: Stone asked the Court to authorize sending subpoenas to the ISPs. The Court said “not yet.” Stone sent the subpoenas anyway. The Court appointed the Ad Litems [EFF and Public Citizen] to argue whether Stone could send the subpoenas. Stone argued that the Court should allow him to - even though he had already done so - and eventually dismissed the case ostensibly because the Court was taking too long to make a decision. All the while, Stone was receiving identifying information and communicating with some Does, likely about settlement. The Court rarely has encountered a more textbook example of conduct deserving of sanctions.

Judge Godbey fined Stone $10,000, which he hopes will be enough to "deter similar misconduct and adequately reflects the gravity of the circumstances." In addition, Stone has to pay the attorney fees for EFF and Public Citizen, and must tell the court if he has settled with anyone in the Mick Haig case, and if so, for how much.

Finally, Stone has to send a copy of Judge Godbey's order to each judge overseeing any federal or state case in which Stone currently has a hand—whether or not it has to do with file-sharing.

Those are serious penalties, but as Judge Godbey noted, "The adage 'it is easier to ask forgiveness than it is to get permission' has no place in the issuance of subpoenas."

Stone has not yet responded to our request for comment.

Update: Stone tells me by e-mail, "After three rewrites, I finally decided I'm just going to have to let Justin Bieber do my quoting for me: 'Whenever you knock me down I will not stay on the ground.'"

$10,000 is not enough. But making Stone send a copy of Judge Godbey's order to each judge overseeing any federal or state case in which Stone currently has a hand—whether or not it has to do with file-sharing seems pretty harsh. But I still would have liked to have seen a larger fine too.

I think the fine should be at least 3x higher. On second thought, 300x higher. For the sharing of about 20 songs, one is fined millions of dollars; for a "textbook example of conduct deserving of sanctions" by a lawyer, 10.000$

Seriously. Is anyone a lawyer? Is this grounds for disbarment? I sure as fuck hope it is.

I am not a lawyer. But I found a code of conduct (PDF)on the site for the Texas Bar which includes some places to start looking...

Quote:

Rule 3.04 Fairness in Adjudicatory ProceedingsA lawyer shall not:[...](c) except as stated in paragraph (d), in representing a client before a tribunal:(1) habitually violate an established rule of procedure or of evidence;[...](d) knowingly disobey, or advise the client to disobey, an obligation under the standing rules ofor a ruling by a tribunal except for an open refusal based either on an assertion that no validobligation exists or on the client’s willingness to accept any sanctions arising from suchdisobedience.[...]

Quote:

IV. NON-CLIENT RELATIONSHIPSRule 4.01 Truthfulness in Statements to OthersIn the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person; or(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid makingthe lawyer a party to a criminal act or knowingly assisting a fraudulent act perpetrated by aclient.

Quote:

Rule 4.04 Respect for Rights of Third Persons(a) In representing a client, a lawyer shall not use means that have no substantial purpose otherthan to embarrass, delay, or burden a third person, or use methods of obtaining evidence thatviolate the legal rights of such a person.

$10,000 is not enough. But making Stone send a copy of Judge Godbey's order to each judge overseeing any federal or state case in which Stone currently has a hand—whether or not it has to do with file-sharing seems pretty harsh. But I still would have liked to have seen a larger fine too.

I'd say it is perfect, because judges need to know what a scumbag he is and that he disrespects the court orders (did what he do violate the law? I'm curious to know). I'd rather see his license stripped from him(maybe jail if it was illegal), so what amounts to a lawyers version of a criminal record seems far from harsh.

I really wish Judges would start holding these clowns that openly flaunt their orders in contempt of court and throw them in jail for a few days/weeks. Might actually make them think twice about doing it again.

I find it great that the judge is ordering that he disclose this order to any and all judges he's involved in a case with right now. If I'm not mistaken, he's trying to make a living doing this type of litigation and this might put a serious crimp in his earnings now that other judges know what type of behavior to be aware of.

If only it discourages him from continuing this line of work... one can only hope...

I really wish Judges would start holding these clowns that openly flaunt their orders in contempt of court and throw them in jail for a few days/weeks. Might actually make them think twice about doing it again.

Not only that...but the judge should have fined him for every subpoena and settlement he sent out. $10,000 for each and everyone one would have been poetic justice.

So to recap... a confirmed criminal is suing a bunch of alleged criminals who "stole" some things. Ain't our legal system grand? For fuck's sake, when are we gonna round up these hypocrites and lock them up where they can't break the law, abuse the legal system, and harm innocent people any longer?

This leaves me torn. It's great the judge sanctioned him, but $10,000 is what he'd collect from 2-5 settling defendants. Monetarily, the sanction is a slap on the wrist.

Couldn't this "slap on the wrist" result in counter-suits (or formal charges) of extortion, especially if a person had settled? If so, Stone could be facing much higher fines than $10,000.

What really disturbs me from the article is that Verizon doesn't check the validity of subpeonas and assumes all of them are genuine. Seriously, don't subpeonas say to contact the court regarding case # if there are any questions?

What really disturbs me from the article is that Verizon doesn't check the validity of subpeonas and assumes all of them are genuine. Seriously, don't subpeonas say to contact the court regarding case # if there are any questions?

Verizon's in the clear, as subpoenas are presumed to be valid on their face, so they acted in good faith. It's basically a court order requiring someone to turn over a person or information, the violation of which is subject to a bench warrant and/or contempt proceedings.

Issuing a fraudulent or false subpoena is a very bad idea, as it could also possibly lead to charges of forging or tampering with government documents, which is a felony in Texas.

This leaves me torn. It's great the judge sanctioned him, but $10,000 is what he'd collect from 2-5 settling defendants. Monetarily, the sanction is a slap on the wrist.

Couldn't this "slap on the wrist" result in counter-suits (or formal charges) of extortion, especially if a person had settled? If so, Stone could be facing much higher fines than $10,000.

What really disturbs me from the article is that Verizon doesn't check the validity of subpeonas and assumes all of them are genuine. Seriously, don't subpeonas say to contact the court regarding case # if there are any questions?

A monetary sanction of $10,000 is actually quite severe although apparently well-deserved in this case. Most states require that attorneys report sanctions of over $1000 to the state bar, which may result in disciplinary proceedings. Also, as a previous commenter noted, he has to pay attorneys' fees to the appointed ad litems, so it's at least possible that the sanctions will deter Stone from future unethical and illegal conduct.

I don't understand why people think this is great. He *explicitly* disobeyed the judge, sent out invalid fricking *subpoenas*, has done so multiple times, and all he gets is a fine and a little dose of humiliation? I mean, a judge has much more serious tools at his disposal, in particular contempt of court. This guy should be in jail.

If they were four songs that he had shared illegally, instead of four subpoenas, would the fine have been higher? Just wondering...

Thomas ordered to pay tens of thousands of dollars per song. Tragic.

I don't really understand the comparison. Thomas was sued and found liable by a jury for willful infringement twice. The issue of damages was tried to a jury three times. And although the juries kept coming back with verdicts of six to seven figures, the judge reduced the total damages to $54,000 or $2,250 per song.

Stone, on the other hand, was sanctioned by a judge for procedural abuses during litigation. He wasn't found liable for anything by a jury.

Jammie Thomas and this dude deserve to be in the same universe with one another. If we could find a pocket universe to stuff them into...maybe we could send the Righthaven lawyers there as a bonus prize.

There are a variety of comparisons. Here are some apparent comparisons: they both were related to media sharing, they both were fined penalties as punishment.

One person shared songs depriving corporations of certain monies. The other person convinced an ISP to provide records of their clients and their activities while on the internet - akin to eavesdropping or wiretapping - something expressly against the law and a judge's order.

I find one fee shockingly exorbitant and the other fee extremely miniscule.

For the same reason there's no death penalty for theft. It's a serious issue, but the courts are bigger on proportionate response than anonymous internet users. Thankfully.

This is a red flag, and if such abuse continues, he will eventually be disbarred. But this particular offense, while serious, is not egregious enough to merit "immediate disbarment", which is basically a career-ender.

Not in Texas. Rule 176 of the Rules of Civil Procedure states that it may be issued by any attorney authorized to practice in the State.

Wow, really?.Gee how can that not be abused.

Subpoenas are subject to challenges, e.g., motions to quash and motions for protective orders. Most often, however, subpoenas are simply ignored. It's then up to the litigant or the litigant's lawyer to spend the time and money to go to court to get an order compelling compliance with the subpoena. Then, it's not unusual for the court's order to be ignored; civil contempt proceedings are somewhat rare.